Sorry, you can’t protest security screening by getting naked for the TSA

Man charged by Oregon, and the feds, for stripping at a TSA checkpoint.

An Oregon man who stripped naked at an airport security screening checkpoint must pay a $500 fine after a federal appeals court ruled that the First Amendment does not protect this method of protest.

The nude protest at Portland International Airport (PDX) by a traveler named John Brennan prompted legal action by both the federal government and the state of Oregon. Portland prosecutors charged him with indecent exposure. A local judge acquitted him, saying that Oregon cannot "punish" him for his nudity, which amounted to protest speech protected by the First Amendment.

Federal authorities also imposed a civil fine for violating a US law that prohibits "interference with screening personnel." The 9th US Circuit Court of Appeals, siding with the government, ruled last week that the First Amendment is no defense to getting naked in a TSA security line.

As you might recall, Brennan made national headlines in 2012. A security screener's gloves used in his pat down tested positive for nitrates, a substance that can be used to build bombs. He had refused to go through the so-called "nude" body scanners, a choice that requires extra security procedures, including a pat down.

Concealing a bomb?

Knowing that an invasive search was coming, he decided to strip in protest—a scene captured on mobile phones by travelers who posted images of it online. He was ordered three times to put on his clothes, and he refused. Transportation Security Administration screeners closed the checkpoint and surrounded Brennan with screening bins until police arrived. He was detained for about an hour before a flight to San Jose, California, and he was found to not have bomb-making materials.

Brennan challenged the fine.

"Brennan’s core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative," the San Francisco-based court ruled (PDF). (In the US, somebody can be charged with a criminal act in state court and may also be accused of a federal civil offense for that same behavior. The most well-known example of that was the O.J. Simpson case.)

“Colony of ants”

Brennan's attorney, Michael Rose of Portland, disagreed with the decision. "Mr. Brennan was simply exercising his First Amendment right to protest the unnecessarily intrusive search by the TSA agents, who responded much like a colony of ants whose hill was kicked over," he told Ars in an e-mail. "Their untoward reaction to his protest was the sole cause of any 'interference' with the smooth operations at PDX, which was the basis for the fine."

Brennan also argued that his conduct did not violate the TSA regulation because he said he did not interfere with screeners performing their duties. The appeals court said that it would be absurd to suggest that the law would allow "a person of ordinary intelligence to think that he or she could strip naked at a TSA checkpoint and refuse to get dressed, leading to the closure of the checkpoint."

David Kravets
The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper. Emaildavid.kravets@arstechnica.com//Twitter@dmkravets